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LegalGems
LegalGems, Lawyer
Category: Consumer Protection Law
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I hope Im in the right area. I recieved a summons complaint

Resolved Question:

I hope I'm in the right area. I recieved a summons complaint from a company I've never heard of. I was served on Oct 10 but it was given to my husband and he had to sign. The notice says you are hereby required to appear and defend complaint filed. It also says I have 30 days from the date of service.

Now in one area it's dated Sept 24th but my husband was served on Oct 10th. Which is the date of service. From my understanding it's the date I was served but I wanted to be sure.

I have filed the forms and said I have no knowledge of this charge and I'm asking for the court to dismiss the charge. I am the defedent when I return this form is that correct?

Here is what I wrote. Can you tell me if this is correct and that I do have until the 10th to file this reponse.



Midland funding LLC,
Plaintiff,
vs.
BRENDA BARRY,
Defendant,
)
)
)
)
)
)
)
)
)
) Case No.:13CV3846CC



MOTION TO DISMISS
AMOUNT OF $1153.52

Defendant hereby moves the Court to dismiss Plaintiff’s Complaint DUE TO PLAINTIFF HAVING NO KNOWLEDGE OF OWING ANY MONIES TO SAID COMPANY. The bases for this Motion are set forth in the accompanying Memorandum. I HAVE NEVER HEARD OF MIDLAND FUNDING LLC AND HAVE NO KNOWLEDGE OF EVER USING CREDIT ONE BANK. BRENDA BARRY IS ASKING THE COURT TO DISMISS ACTION BASED ON THESE FACTS.

Defendant request that this lawsuit be dismissed and the judgment be entered against the plaintiff for an counter-claims, cost or attorney fees.

Dated this 21ST day of OCTOBER, 2013




BRENDA L. BARRY
375 LITTLE BOOK LANE
ROSEBURG, OREGON 97471
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  LegalGems replied 1 year ago.

LegalGems :

Hi! LegalGems here. I'll do my best to assist you.I can only provide general information, so a follow up consult with a private lawyer is recommended. I have reviewed your question and am composing a response.

LegalGems :

9/24 is likely the date the court stamped the documents. You can call the clerk and ask, based on the proof of service filed, the actual date of service to ensure that the proof of service coincides with your date.

LegalGems :

The "debtor" is the defendant.

Customer:

So it's the date stamped and not the date served? I wasn't served until Oct 10th

LegalGems :

Often times, a "creditor" will bring an action on an old debt, or on the wrong defendant, in the hopes of getting a default judgment - an automatic judgment entered in plaintiff's favor for the amount asked, since no one shows to defend it.

LegalGems :

Generally there is a file date, a service date, and a hearing date.

Customer:

These are the words it was served on Oct 10th it was served to me. It says I have 30 days from the date of service. There is no hearing date yet.

Customer:

Here is what's written

LegalGems :

A "debtor" can request validation of a debt pursuant to the Fair Debt Collection Practices Act. This requires the creditor to provide the information showing the debt is owing. The statute is quite vague as to what is considered acceptable proof. However, in court the plaintiff has the burden of proof and needs to "prove" the debt by showing signatures, statements, etc.

Customer:

you are hereby required to appear and defend the complaint filed against you in the above entitled action within 30 days from the date of service of this summons upon you, in case of your failure to do so.

LegalGems :

Often, a judge will award attorney fees and costs to the party that is being sued by a plaintiff that has no reasonable grounds for initiating the lawsuit. So it is worthwhile to - in writing- inform creditor that you have no liability for the debt; that you never borrowed this sum from their company. Often times, they will file a voluntary "request for dismissal with prejudice" once they realize the "defendant" is aware of their rights and will appear in order to contest it.

LegalGems :

Yes, that is standard language. I assume this is small claims?

Customer:

Yes

LegalGems :

According to their website the defendant has 14 days to respond/

Customer:

My concern was I only got home a few days ago. And was trying to see and from what I read it sounds like the 30 days is from the date I was served. There is no stamp just a date when they did the paperwork

LegalGems :

"Once the plaintiff files a claim and serves it on the defendant, the defendant has 14 days to either pay the claim or file an answer and request a hearing. If the defendant does not do one of those things, the plaintiff may ask the court to enter a default judgment against the defendant. Forms and instructions for doing this are available in the forms section of this site."

Customer:

And the court said ---you are hereby required to appear and defend the complaint filed against you in the above entitled action within 30 days from the date of service of this summons upon you, in case of your failure to d

LegalGems :

30 days is usually in general civil.

LegalGems :

In small claims the defendant needs to request a hearing.

Customer:

So the form is wrong?

Customer:

I don't really have 30 days?

LegalGems :

I'm pulling up the form now.

Customer:

It's confusing what If I hadn't of been home for a month.

LegalGems :

The form specifies 14 days:


NOTICE TO DEFENDANT:

READ THESE PAPERS CAREFULLY!

Within

14 DAYS*

after receiving this notice you

MUST

do

ONE

of the following things in

writing:


Pay the claim plus filing fees and service expenses paid by plaintiff (send

payment directly to the plaintiff, not to the court)

OR


Demand a hearing and pay the fee required (below)

OR


Demand a jury trial and pay the fee required (below). This option is available

only

if amount claimed is more than $750.

If you fail to do one of the above within

14 DAYS*

after you get this notice, th

e plaintiff

may ask the court to enter a judgment against you. The judgment will be for the amount

of the claim, plus filing fees and service costs paid by the plaintiff, plus a prevailing party

fee. If you are not able to respond in time because you are

in active military service of

the United States, talk to a legal advisor about the Servicemembers Civ....

LegalGems :

If you weren't home then you would file a motion to vacate judgment based on your absence from state.

Customer:

I was in California and they served my husband and they describe that on the front

Customer:

I live in Oregon

Customer:

I was in California when they served my husband

LegalGems :

Yes, they can usually leave it with an adult that is in the residence.

Customer:

So I'm still confused

Customer:

Why does it say that I have 30 days from the date of service of this summmons upon you. Wouldn't that mean from the date they served me or someone else?

Customer:

It doesn't say from the date the paperwork was done?

LegalGems :

It means that the date service was effectuated - and that can be serving an adult that would be expected to give the documents to the defendant.

LegalGems :

Date of service is what matters, not date of filing; for response purposes.

LegalGems :

Are you sure this is small claims, Oregon?

Customer:

Circuit court in the state of oregon for Douglas county

LegalGems :

For the amount I would assume so, but your paperwork is not consistent with the websites.

LegalGems :

Just a second please.

Customer:

okay

LegalGems :

Thanks. That's not small claims. http://courts.oregon.gov/Douglas/Pages/criminal.aspx This is a general court.

Customer:

What is it?

Customer:

what's the difference?

LegalGems :

It depends what branch they filed in. They do have a small claims branch, but it requires 14 day response; not 30.

Customer:

Between general court and small claims

Customer:

So I'm out of luck then because it was filed on Sept 13 and I didn't get it until oct 10

LegalGems :

The difference is generally cases under $10K are brought in small claims because it is cheaper, quicker etc. However sometimes a plaintiff will bring a case in general in order to rack up attorney fees and intimidate defendant to pay.

LegalGems :

No the date of service is still controlling, not the filing date.

Customer:

Okay that's where I'm getting confused

Customer:

What is the date of service?

Customer:

How do they determine that

LegalGems :

The date of service is the date the individual received the paperwork (or the paperwork was received by a responsible person at the residence). The plaintiff must file attest, under oath, that on such and such date, service was effectuated.

Customer:

So it's from the date he was served afterall.

LegalGems :

Here is an example of a proof of service that is filed with the court: http://courts.oregon.gov/Douglas/docs/smallclaims/pos_cert_mail_sc-14-new.pdf

LegalGems :

Yes, the filing date is the date the plaintiff filed the papers; the service date is the date of service as indicated on the proof of service.

LegalGems :

I would suggest you call the clerk to verify which department this is in, as it would generally be in small claims, but small claims has a 14 day response time.

Customer:

Okay so they sent us a letter saying we were served and who they served in description.

LegalGems :

Here is "small claims in a nutshell": http://courts.oregon.gov/Douglas/docs/smallclaims/small_claims_in_a_nutshell_10-11.pdf

Customer:

they mailed us that

Customer:

They say the date was 10/10/2013 time 10:45 then they go on to describe my husband

LegalGems :

That was probably a copy of this form: http://courts.oregon.gov/Douglas/docs/smallclaims/pos_1st_class_mail_after_sub_service_sc-14as-new.pdf

Customer:

So one more time.. We have 14 days from the 10th even though it says 30

Customer:

It clearly states 30 on the notice to appear and nowhere does it say 14 days,.

LegalGems :

That's why I'm confused. All the small claims dox I'm looking at say 14 days.

Customer:

This one says. (30) days

Customer:

I wish I could scan it but it's so late.

LegalGems :

Which is why I'm thinking it's not small claims.

Customer:

It was filed in Douglas County Trail courts

Customer:

trial

Customer:

It's from an Attorney

LegalGems :

Did you review the information I sent you above - the various links? For small claims, which is cases under $10K, the response time is 14 days.

Customer:

suttell & Hammer P.S.

Customer:

it just took me to some forms

Customer:

it's only 1100

LegalGems :

I would need to see the document but I am not able to review documents on this site unfortunately. For general civil, typically the response time is 30 days; for small claims it is 14 (the idea is to expedite it). Attorneys generally are not allowed to represent in small claims, absent special court approval.

Customer:

1,100

LegalGems :

If they want a jury trial they can bring it in general civil.

LegalGems :

regardless of the amount.

Customer:

So it could be a jury trial?

LegalGems :

If it is in general civil it is best to hire an attorney because the process is very complicated. A missed date can result in a default against you. There is a discovery process, a jury selection process, a case management conference, and several other deadlines that need to be met.

Customer:

what is a default against me>

LegalGems :

The judge enters a judgment against the defendant because of a missed deadline.

LegalGems :

Not good. Because then there is a whole process that you would need to request vacating the judgment -very time consuming and expensive.

Customer:

how can they do that for something I don't owe?

Customer:

I don't even rememer this credit card

Customer:

says it was from Bank one

Customer:

never heard of them

LegalGems :

Unfortunately they count on people dismissing it and just not showing up; many creditors successfully get default judgments this way.

Customer:

I'm going to show up.

Customer:

But wasn't sure where to go since there is no date set

LegalGems :

Is there a case #?

Customer:

Yes.

LegalGems :

I would call the clerk, give her the case # XXXXX ask which division this is.

Customer:

13cv3846cc

LegalGems :

Then you will know for certain if it is small claims or civil. You can ask if a hearing has been scheduled.

LegalGems :

Yes, I don't have access to the court system. You would need to call the clerk.

Customer:

How common is it for them to go civil for a credit card?

LegalGems :

It is not unheard of. It complicates matters and some creditors use it as a strategy.

LegalGems :

Some people will get overwhelmed and just walk away.

Customer:

Okay. Well I'll call tomorrow and see what I can find out.

Customer:

Thank you

Customer:

One more question. how do they make you pay?

Customer:

If you don't have a job and are making no money?

LegalGems :

http://courts.oregon.gov/Douglas/docs/smallclaims/small_claims_court_manual_rev_10-11.pdf - in case it is small claims, this is the info you will need. If it's general civil, http://courts.oregon.gov/OJD/docs/selfhelp/civiltrialbrochurefinal2.pdf If it is the latter, I would strongly urge you to contact an attorney.

Customer:

I can't really afford that.

Customer:

I am not working.

Customer:

Heart disease.

Customer:

So I have no way to pay anyway.

Customer:

But my credit is good and that part is awful.

LegalGems :

I'm sorry to hear that. That makes this all the more frustrating.

Customer:

Can they send you to jail.

LegalGems :

Are you a senior?

Customer:

yes I'm 61

LegalGems :

Not typically for credit card charges.

LegalGems :

Just a sec please.

Customer:

okay

LegalGems :

I assume you are in Douglas county?

Customer:

yes.

LegalGems :

another moment please.

Customer:

okay

LegalGems :
Douglas County Senior and Di

sabilities Services Division

(541)(NNN) NNN-NNNN/div>
Serves Douglas
LegalGems :

Make sure the number went through; sometimes the sensors block it out

LegalGems :

This is a legal service that is a non profit. It offers SOME services for seniors for free. I'm not sure what they are. If this is not a small claims case, I would urge you to contact them to see if they can assist.

Customer:

Okay thank you.

Customer:

I'll call tomorrow to the court house and try to find out what kind this is

Customer:

Thank you for your help

LegalGems :

You are welcome. If you can find an attorney to draft a letter stating that the debt is not yours they may very well dismiss with prejudice - which would be very good because it would make the problem go away. That's the thing I was talking about earlier- the Fair Debt Collection Practices Act. You are very welcome. I hope it all works out for you. Creditors can be unethical to say the least.

LegalGems, Lawyer
Satisfied Customers: 3727
Experience: Research Attorney; Private Practice; Attorney Mentor; Mediator
LegalGems and 5 other Consumer Protection Law Specialists are ready to help you
Expert:  LegalGems replied 1 year ago.
I hope you found the information I provided useful.
Future requests can be labeled "TO LEGAL GEMS" followed by your question.

It would be appreciated if you complete the admin's survey - it's like our report card!

Thanks, and take care!

PS- I have been trying to find an uncopyrighted Debt Validation letter but am unable to do so. You can google "debt validation letter" and use that as a template. You would still need to follow up with the court documents also.

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